923 F2d 861 Dean v. M Gray

923 F.2d 861

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

John L. DEAN, Plaintiff-Appellant,
v.
John M. GRAY et al., Defendants-Appellees.

No. 88-3783.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 26, 1990.*
Decided Jan. 16, 1991.

Before TANG, FLETCHER and ALARCON, Circuit Judges.

1

MEMORANDUM**

2

John L. Dean appeals pro se from the order granting summary judgment and dismissal of his action in favor of various agents of the Internal Revenue Service (IRS). Dean raises the following grounds on appeal: against the sale of his condominium and actual and punitive damages. On June 22, 1987, the state court denied Dean's request for an injunction.1

3

On June 25, 1987, the IRS removed the "Slander of Title" case to federal court. On July 5, 1987, Dean filed a motion for a remand. The district court denied his motion. Dean then sought an entry of a default judgment because the IRS agents did not file an answer. The district court also denied this request.

4

On August 3, 1987, IRS agents filed a motion to dismiss or in the alternative for summary judgment. On October 15, 1987, the district court granted IRS agents' motion for summary judgment. Dean appeals.

DISCUSSION

I. Removal

5

Dean contends that the district court erred in finding that this action was properly removed from state to federal court. We review de novo questions involving removal jurisdiction. Richards v. Harper, 864 F.2d 85, 86 (9th Cir.1988). The federal officer removal statute, 28 U.S.C. Sec. 1442(a)(1), provides in pertinent part:

6

A civil action or criminal prosecution commenced in State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:

7

(1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office or on account of any right under any Act of Congress for the apprehension or punishment of criminals or the collection of revenue.

8

The purpose of this statute is " 'to ensure a federal forum in any case where a federal officer is entitled to raise a defense arising out of his official duties.' " Saul v. Larsen, 847 F.2d 573, 575 (9th Cir.1988) quoting Arizona v. Manypenny, 451 U.S. 232, 241 (1981), reh'g denied, 452 U.S. 955 (1981).

9

The Supreme Court has adopted a broad interpretation of section 1442. Willingham v. Morgan, 395 U.S. 402, 405-406 (1969) ("the federal officer removal statute is not 'narrow' or 'limited.' At the very least, it is broad enough to cover all cases where federal officers can raise a colorable defense arising out of their duty to enforce federal law."). We have held that " '[t]he only prerequisite to removal of a civil action under Sec. 1442 is that it be brought against a federal officer or agency.' " Cook v. Peter Kiewit Sons Co., 775 F.2d 1030, 1034 (9th Cir.1985) [Citation omitted] (emphasis in original), cert. denied, 476 U.S. 1183 (1986).

10

In the instant matter, Dean's claims against the IRS agents arise from the performance of their duties as revenue officers of the IRS. The agents were authorized to remove the action from state to federal court because section 1442 permits removal for "... any act under color of such office...." Because the IRS agents acted in their capacities as federal officers and because they assert this as a defense, the removal of this action from state to federal court was proper. See e.g., Richards v. Harper, 864 F.2d 85, 86 (9th Cir.1988) (members of Congress may remove action because they acted within the scope of their duties as federal officers and they asserted this as a defense).

II. Jury Trial

11

Dean asserts that he is entitled to a jury trial prior to the assessment and collection of any tax deficiency. In Olshausen v. C.I.R., 273 F.2d 23 (9th Cir.1959), cert. denied, 476 U.S. 1183 (1960), we held that "[t]here is no right to a jury trial without paying first as a statutory matter and no right to a jury trial at all in all tax matters as a constitutional requirement." Id., 273 F.2d at 27. In Olshausen, appellant filed a petition in Tax Court for a prepayment review of his tax liabilities. The Tax Court denied his petition. On appeal, appellant argued that he was deprived of his right to a jury trial. We disagreed and held that "such deprivation was due to his own act. If he desired a jury trial, he should have paid the tax first and then sued for a refund in the district court." Id., 273 F.2d at 27. See also McCoy v. Commissioner of Internal Revenue, 696 F.2d 1234, 1237 (9th Cir.1983) ("by paying the tax and perfecting a refund suit the McCoys could have obtained a jury trial").

12

In the present case, Dean voluntarily chose not to pay taxes first and then sue for a refund. Therefore, under the law of this circuit Dean is not entitled to a jury trial.

13

III. Dean's Status as a "Nontaxpayer"

14

Dean argues that because he is "a freeborn sovereign citizen of Washington who conducts his affairs as a matter of common right and is not a 'taxpayer' nor a 'person' or 'employee' as defined in the Code, he has no obligation to subject himself to that Code." Appellant's Opening Brief at 16. In United States v. Studley, 783 F.2d 934 (9th Cir.1986), we found frivolous a taxpayer's allegation that she, an "absolute, freeborn and natural individual," is not subject to taxation. Studley, 783 F.2d at 937. Dean's contention that he is not subject to the payment of taxes is frivolous.

IV. Sovereign Immunity

15

Dean contends that the district court erred in finding that it lacked subject matter jurisdiction because the doctrine of sovereign immunity barred his action against the United States. Dean asserts that this matter is an action to quiet title under 28 U.S.C. Sec. 2410(a). He argues that sovereign immunity is waived in such actions. We review de novo the dismissal for lack of subject matter jurisdiction. Elias v. Connett, 908 F.2d 521, 523 (9th Cir.1990). We must accept the district court's factual findings on jurisdictional issues unless they are clearly erroneous. Id.

16

It is well-established that "[t]he United States is a sovereign entity and may not be sued without its consent. Absent its consent to suit, an action against the United States must be dismissed." Elias v. Connett, Id., 527 (citing Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir.1985). "Such waiver [or consent] cannot be implied, but must be unequivocally expressed." DaGrossa, 756 F.2d at 1458. "It has long been the rule that the bar of sovereign immunity cannot be avoided by naming officers and employees of the United States as defendants." DaGrossa, 756 F.2d at 1458. We have unequivocally held that "a suit against IRS employees in their official capacity is essentially a suit against the United States." DaGrossa, 756 F.2d at 1458.

17

The record does not demonstrate that section 2410 is applicable under the facts and circumstances of this case. Section 2410(a) provides that:

18

"the United States may be named as a party in any civil action or suit in any district court, or in any State court having jurisdiction of the subject matter--(1) to quiet title to ... real or personal property on which the United States has or claims a mortgage or lien."

19

28 U.S.C. Sec. 2410(a). We have held that "[a] taxpayer may not use a section 2410 action to collaterally attack the merits of an assessment. Rather, the taxpayer may only contest the procedural validity of a tax lien." Elias v. Connett, 908 F.2d 521, 527 (9th Cir.1990). In Elias v. Connett, to support his quiet title action against the United States under section 2410, the taxpayer contended that his tax deficiency was void, that the assessment against him was unlawful, that he was not liable for any tax penalties, and that the assessment was invalid because he was not issued a notice of deficiency. Elias, 908 F.2d at 527. We held that "[t]hese allegations address the merits of Elias's assessment rather than the procedural validity of the IRS's lien. Therefore, they do not support Elias's claim that he has stated a quiet title cause of action under section 2410(a)." Id.

20

Similarly, Dean has failed to state a cause of action to quiet title under Section 2410(a) because the record reveals that he does not challenge the procedural validity of the IRS's lien on his condominium. Instead, Dean attacks the merits of the IRS's underlying claim that Dean owes taxes by contending that he was not a taxpayer and that the agents violated his constitutional rights. The district court did not err in concluding that it lacked subject matter jurisdiction because Dean has not shown that the United States has waived sovereign immunity.

V. Qualified Immunity

21

Dean also contends that the district court erred in concluding the IRS agents were protected by qualified immunity. Dean asserts that the conduct of various IRS agents violated his due process rights under the fifth amendment.

22

The doctrine of qualified immunity does not preclude a cause of action against federal officers when they violate an individual's constitutional rights. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971); Gilbert v. DaGrossa, 756 F.2d 1455 (9th Cir.1985). "[I]n order to bring a damage action against a federal official in his individual capacity, and thereby avoid the bar of sovereign immunity, the normal rules for establishing in personam jurisdiction apply." DaGrossa, 756 F.2d at 1459. Dean has failed to demonstrate that the IRS agents were personally served. Therefore, the district court did not err in finding that Dean could not maintain an action for monetary damages against IRS agents in their individual capacities because they were not served.

23

Further, in Wages v. IRS, No. 88-3650, slip op. 12773, 12782 (9th Cir. Oct. 9, 1990), we stated that "we have never recognized a constitutional violation arising from the collection of taxes." The district court did not err in dismissing this action against the IRS agents.

VI. Sanctions

24

Under Rule 38 of the Federal Rules of Appellate Procedure, we have inherent jurisdiction to impose sanctions on litigants for filing a frivolous appeal. "An appeal is frivolous when the result is obvious or the appellant's arguments are wholly without merit." Smith v. C.I.R., 800 F.2d 930, 936 (9th Cir.1986). We have determined that this appeal is frivolous. Dean has unsuccessfully appealed to this court at least four times on the same tax matter. We have previously imposed a sanction of $1500.00 in an earlier appeal arising out of the same tax dispute. Accordingly, we impose an additional sanction of $3000.00 for the prosecution of this frivolous appeal. See Colton v. Gibbs, 902 F.2d 1462, 1464 (9th Cir.1990) (imposing sanctions on taxpayer with "long history of tax-related litigation (including three unsuccessful appeals to this court), most of which has been dilatory and abusive"); Trohimovich v. C.I.R., 776 F.2d 873, 875-876 (9th Cir.1985) (imposing sanctions of double costs on taxpayers finding that they "continue to abuse the judicial process and to burden this court, as well as the district court and the Tax Court, with patently frivolous claims").

25

Dean's request for sanctions against opposing counsel and the district court is denied.

26

AFFIRMED.

*

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument pursuant to Fed.R.App.P. 34(a), Ninth Circuit Rule 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

On June 22, 1987, Dean also filed a suit in federal court against IRS agents. He alleged that he was a "nontaxpayer" and sought an injunction against the sale of his condominium, a writ of mandamus to prohibit permanently the IRS from collecting his income tax liabilities, and recusal of the district court judge. On June 25, 1987, the district court denied Dean's request. Dean appealed. We affirmed and held that the appeal was moot because the sale of the condominium had already occurred two days prior to the district court's decision on June 23, 1987, that Dean's suit was barred by the Anti-Injunction Act, and that the district court did not err in denying Dean's request that the judge recuse himself. Dean v. Grey, et al., No. 87-4177 (9th Cir. June 26, 1989)